ISPs Shouldn’t Be Responsible for Prop 65 Warnings
CJAC Liability Reform Insider (July 2021) – CJAC filed an amicus
brief on June 7 in the First Appellate District, Div. Two
in Lee v. Amazon.com, Inc., A158275.
The issue: Does the federal Communications Decency Act (CDA)
shield an internet service provider (ISP) like Amazon from
liability for not adding a warning of its own to correct the
failure by third-party sellers to furnish a Proposition 65
warning about the potential toxicity of products they place for
sale on the ISP’s website?
The superior court said “yes,” after a bench trial in which
plaintiff charged Amazon with violating Prop 65 by not placing
its own warning on skin-lightening cream products that
third-party sellers sold on Amazon’s website without an
accompanying warning that they contain mercury.
The court ruled that plaintiff failed to present any evidence
that anyone actually used any of the skin-lightening
creams at issue or that Amazon “knowingly and intentionally”
exposed a purchaser to mercury. Second, the court held Amazon is
immune from Prop 65 liability for third-party sales under section
230 of the federal CDA.
In CJAC’s amicus brief supporting the lower court ruling, we
argue the obligation to accompany a product with a Prop 65
warning falls on the manufacturer and third-party seller, not an
ISP such as Amazon.
The CDA’s section 230 makes clear from its literal language and
panoply of decisional law applying it that “no provider … of an
interactive computer service shall be treated as the publisher or
speaker of any information provided by another information
content provider.”
Amazon is an ISP and the third-party sellers are “other
information content providers.” The CDA’s protection of ISPs from
being forced to correct information provided them by third-party
sellers or content providers about their products is preemptive
of conflicting state law.
While the target of this litigation is Amazon, the outcome of
this case can have profound impacts on other comparable online
companies – like Walmart.com, eBay.com, and Overstock.com – that
offer their customers products for sale made and packaged by
third parties.
No law requires this of online marketplaces or conventional
brick-and-mortar shops or auction houses, nor could they without
incurring significant costs that would ultimately be passed on to
consumers in the way of higher costs or cause the company to go
out of business.